Case No.:

REV-52-1962

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Civil Procedure-Default decree—Civil Justice Ordinance 1929. s. 64 (1) (a)—No default decree can be reserved if plaintiff unready to go forward with evidence

If on the day set for hearing of a civil action plaintiff appears through his advocate and defendant does not appear, plaintiff must go forward with his evidence in accordance with Civil Justice Ordinance 1929. s. 64 (1) (a). If plaintiff is not ready to go forward, no default decree shall be reserved, and defendant shall he entitled to notice of the new date of hearing.

Judgment

(COURT OF APPEAL) *

ABDEL HAFEEZ HAMAD v. ALI EL ZUBEIR ALlAC-REV-52-1962

B. .Awadalla 1. April i8, 1962: —This is an application against the summary dismissal by the Honourable Judge of the High Court, Blue Nile Circuit, of an application to him against the default decree passed by the learned District Judge. Wad Medani, in CS-493-1961

The case was one of eviction in which the respondent was plaintiff. Hearing was fixed for September 12, 1961, and defendant summoned for that date. He failed to appear and the advocate for plaintiff apparently applied to have it adjourned for a hearing or until an affidavit could be submitted in proof of claim. This was granted by the court but no date fixed for a second hearing. On October xo, advocate for plaintiff applied to have the case brought before the learned District Judge and again this was done and case put before the judge on November 14, 1961. On that date plaintiff and his advocate appeared and plaintiff restated his claim on oath and got judgment. Defendant applied for re opening but his application was rejected.

In my view, the procedure adopted by the court was wrong, although I must admit that it is becoming a very common practice. What happens is that a plaintiff’s advocate comes to court unprepared for the eventuality of non-appearance of the defendant in that he does not come armed with the evidence necessary to prove the claim. Civil Justice Ordinance 1929, s. 64

(1) (a), says that the court shall in such case proceed to hear the suit and does not say that plaintiff shall be entitled to judgment in default if, therefore, on the day fixed for the first hearing, the court for any reason decides to defer the hearing to a later date, the defendant is entitled to be given notice of that date. There is no such a thing as “reserving a right to a judgment in default.” if the plaintiff wants to have the hearing adjourned, then it is only fair to give notice of the new date to the defen dant, especially when, like the case now under consideration, the adjourn m is not made for a fixed date but only sine die pending further inquiry by plaintiff.

This application is therefore allowed and the, decree of the learned District Judge, dated November i4, 1961, is hereby set aside, with directions that the court shall start afresh.

No order as to costs.

M. A. Abu Rannat C.J. April x8, 1962 —l concur.

Court: M. A. Abu Rannat C.J. and B. Awadalla J.